https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10788

Mutungi v Republic (Criminal Appeal E025 of 2024) [2026] KEHC 10788 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEHC 10788 (KLR) Republic of Kenya In the High Court at Nyahururu Criminal Appeal E025 of 2024 LN Mutende, J July 7, 2026 Between Catherine Mugure Mutungi Appellant and Republic Respondent Judgment 1.Catherine Mugure Mutungi, the Appellant, was jointly charged with another for offences thus;Count 1:Obtaining registration by false pretence contrary to section 320 of the Penal Code.Particulars of the offence were that on the 6th day of August, 1998 at Rumuruti Township in Laikipia West Sub-County within Laikipia County, jointly with others not before court procured for Joyce Njoki Gakure national identity card number 8648324, registration of land Title Deed No. Marmanet/North Rumuruti Block 2/6485 valued at Kshs.2,000,000/- by falsely pretending that she was authorized by the registered owner Patrick Gikore Mwitari to secure the same.Count 2:Obtaining registration by false pretence contrary to Section 320 of the Penal Code.Particulars being that on the 29th March, 2004 at Rumuruti Township in Laikipia West Sub-County within Laikipia County, jointly with others not before court procured for Titus Munene Kareria of national identity card number 1091261 registration of land Title Deed No. Marmanet/North Rumuruti Block 2/6485 valued at Kshs.2,000,000/- by falsely pretending that she was authorized by the registered owner Patrick Gikore Mwitari to secure the same.Count 4:Obtaining registration by false pretence contrary to Section 320 of the Penal Code.Particulars being that on the 6th day of August, 1998 at Rumuruti Township Laikipia West Sub-County within Laikipia County, jointly with others not before court procured registration of land Title Deed No. Marmanet/North Rumuruti Block 2/6485 valued at Kshs.2,000,000/- by falsely pretending that she was authorized by the registered owner Patrick Gikore Mwitari to secure the same. 2.After full trial she was found guilty, convicted and sentenced to serve one (1) year imprisonment on each count, sentences that were ordered to run concurrently. 3.Aggrieved, the Appellant proffered an appeal on grounds that;1.The learned trial Magistrate erred in law and fact by finding that there was evidence to support the charge of obtaining registration by false pretenses contrary to Section 320 of the Penal Code.2.The learned trial Magistrate erred in law and fact by finding that the testimonies of prosecution witnesses were contradictory but none of the less proceeded to rely on the same evidence to convict the Appellant.3.The learned trial Magistrate erred in law and facts by accepting the prosecution’s case as proved without taking into consideration the defence case.4.The learned trial Magistrate erred in law and facts by failing to consider the evidence of the defence in totality.5.The learned trial Magistrate erred in law and facts by ignoring the legal principle governing the circumstantial evidence when to convict on the basis of such evidence.6.That the conviction was against the weight of the evidence adduce. 4.To prove the case the prosecution called 5 witnesses. PW1 Joyce Njoki Gikore a widow and Administratix of the Estate of Patrick Gikore Mwitari stated that L.R. No. Marmanet/North Rumuruti Block 2/9 (Ndurumo) was registered in the name of her husband but his cousin Titus Munene Kareria (PW 2) lived on the land overseeing it since her husband lived in Meru. That her husband intended to sell it hence after she obtained a grant of letters of Administration there were interested buyers following his passing. That is when she learnt that the land had been subdivided and new title deeds issued. Mutation forms also existed, the application having been made on 6th November, 1997. She reported the matter to Kinamba Police Station. 5.PW2 Titus Munene Kareria, stated that his cousin owned L.R. No. Marmanet/North Rumuruti Block 2/9 (Ndurumo) measuring 6.080Ha since 1996 and he had entrusted him with overseeing the land. That he wanted to sell the land hence he (Titus) got him the buyer James Mwangi Wanjohi who was to buy the land measuring 5 acres in 1996 at Kshs.150,000/-. That the entire portion measured 15 acres. They got a surveyor one Isaiah Irungu who availed mutation forms and told Patrick to sign and give him a copy of the title deed as he (Irungu) was to sign other parts of the mutation form. Patrick complied. That Irungu later returned with a map for subdivision purposes. 6.The map showed the land had been subdivided and was now measuring 2.023Ha marked as portion ‘A’ (6234) and portion ‘B’ (6235) Wanjohi was to have a subdivision of 5 acres while Patrick was to remain with the rest. 7.Further, he stated that they told his cousin that he (Titus) was the one responsible for the subdivision but he denied any involvement and on going to the Land Registrar they found the green card still intact but the map showed the land was subdivided. There were anomalies, and Wanjohi had transferred land to himself hence his cousin declined to sell land to him. The action made Wanjohi sue him in the High Court, a matter that abated. 8.Subsequently, he purportedly purchased 10 acres of land from his cousin’s wife and when the Succession Cause was filed Wanjohi and the wife of the deceased were entitled to 5 acres. That he became the registered owner of L.R. No. Marmanet/North Rumuruti Block 2/6485 (Ndurumo) measuring 1.767ha. 9.He stated that he bought the parcel of land from Patrick in 1997 and paid partly the money through the bank. That the Appellant was stated to be the wife of Irungu. And, the title was alleged to have been taken by Irungu in Titus’ name to the District Officer while his Co-Accused was issued with a title subdivided from 3005 and his (Titus’) title deed. 10.PW4 Pamela Muthoni Mutegi, the Land Registrar in-charge Laikipia, stated that she was tasked to deal with title Marmanet/North Rumuruti Block 2/6279 (Ndurumo). And according to records at the Land Registry it was first registered on 6th August, 1998, the acreage was 2.202 Ha. The first (1st) registered owner was the Government of Kenya and on the same date it was transferred to Njuguna Kiruma and a title issued. 11.PW5 Patrick Ndung’u also Land Registrar, Laikipia based in Nanyuki stated that Marmanet/North Rumuruti Block 2(Ndurumo)/9 measuring 6.090 Ha was registered in the Government of Kenya on 15th July, 1991 then on 5th August, 1992 it was registered to Patrick Gikore Mwitari and a title deed issued. On 4th May, 1998, James Mwangi Wanjohi effected a caution claiming he had purchased the land. On 25th August, 2011 another caution was put by Titus Munene Kareria who alleged to be a purchaser. 12.Regarding Marmanet/North Rumuruti Block 2/6485 measuring 1.767 Ha, the Government of Kenya was registered on 19th February, 1999 on the same day and it was transferred to Anne Kabura Charuba and Catherine Muthoni Mutungi who were issued with a title deed. On 13th July, 2020, it was transferred to Joyce Njoki Gikore and a title deed was issued. On 29th March, 2004, it was transferred to Titus Munene Kareria on the same day a title deed was issued. 13.Regarding Marmanet/North Rumuruti Block 2/6279 measuring 2.202 Ha, the government was first registered as the owner on 6th August, 1998 and a title deed issued. Then it was transferred to Charles Njuguna Kiruma. That the land was disputed by Joyce Gikore. 14.Marmanet/North Rumuruti Block 2(Ndurumo) measuring 3.522Ha was transferred to Johnson Gichuki Ndegwa and a title deed issued. On 14th October, 2016, following a succession cause the title was registered in the names of Administrators, Joseph King’ori and Stephen Karegori Ndegwa and transferred to Joseph King’ori on the same day. 15.PW6 Nathan Mbugua Kinyanjui, the District Surveyor stated that mutation in respect of land number Marmanet/North Block 2/9(Ndurumo) was taken to their office on 6th November, 1997, payments were made by Patrick Gikore Muritai ID No. 24339388/70, a receipt No. 81946933 and the land was subdivided into 2 portions – 6234 – 2.023Ha and 6235 – 1902Ha. That Patrick Gikore attended the Rumuruti Land Control Board on sub-division and a consent was issued dated 26th February, 1997. 16.For land 6485 that the register showed the original area was 5.864 Ha and was amended and given a new number. 17.PW3 No. 73299 Corporal Collins Shikuku arrested the Appellant herein since she could not explain how she obtained the title deed and the parcels of land. He obtained some documents relevant to the case from the surveyor’s office and caused the Appellant to be charged. 18.Upon being placed on her defence the Appellant stated that regarding No. 6485, she was a member of Laikipia North Marmanet and she got papers then went to get a title. That she was a member of Laikipia West Farmers and she got the land in 1997. That the District Officer Rumuruti recalled their papers and were to be issued with other documents that were in order in the year 2000. That she fell sick and underwent surgery. After recovery, she went to see the District Officer but did not find him. That she went to Nanyuki several times and was taken to the District Officer’s office. Later she was arrested. She denied having transferred forms to Joyce Gikore and to Titus. Regarding No. 6279 she denied being involved in changing the title deed. 19.The appeal was disposed through written submissions that I have taken into consideration. 20.This being a first appellate court it is duty bound to re-examine evidence adduced at trial and scrutinize the findings bearing in mind that it did not have the opportunity of seeing or hearing witnesses to assess their demeanour, then form its independent conclusions. This, was summed up in Okeno v Republic (1972) EA 32 thus;“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.” 21.The onus of proof in a criminal case rests on the prosecution and the principle was laid down in celebrated case of Woolmington v DPP [1935] 4KHL 1, where the court stated that it is the duty of the prosecution to prove the case beyond reasonable doubt and the accused bears no duty to prove his innocence. 22.In Sekitoleko v Uganda [1967] EA 531 Sir Udo Udoma CJ held that;“As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts whether the defence set up is an alibi or something else. That burden always rests on the prosecution” 23.All the three counts that the Appellant was found culpable by the trial court stipulate that she contravened Section 320 of the Penal Code by procuring for the registration of land title deeds pretending that she was authorized by the registered owner. The provision of law provides thus;Any person who wilfully procures or attempts to procure for himself or any other person any registration, licence or certificate under any law by any false pretence is guilty of a misdemeanour and is liable to imprisonment for one year. 24.The title deed in issue is No. Marmanet/North Rumuruti Block 2/6485. The main issue to be determined will be whether the Appellant secured the title and ultimately acquired it for the Complainants by falsely pretending to have been authorized by the registered owner. 25.False pretence is defined by Section 312 of the Penal Code as;“Any representation, made by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence. 26.In the instant case, the false pretence is insinuated to have been direct to the victim with knowledge that it was not true. It is alleged that she pretended to have been authorized by the registered owner Patrick Gikore Mwitari to carry out the transaction of registration. 27.Patrick Gikore Mwitari died on 1st May, 1999, (vide death certificate – P-Exhibit 2). Joyce Njoki Gikore was the Widow of Patrick Gikore. Her testimony was that her husband owned Marmanet/North Rumuruti Block 2/9 Ndurumo and a title deed for the land was adduced in evidence –( see P-Exhibit 4). The stated title deed was for land measuring 6.080 Hectares and it was issued on 5th August, 1992. 28.PW 2 resided on the land owned by the deceased and after PW1 obtained Letters of Administration Intestate, she found that the land was already subdivided. She denied having been aware that her husband owned title Marmanet/North Rumuruti Block 2/6485. 29.PW2 Titus Munene Kareria was the registered owner of title Marmanet/North Rumuruti Block 2/6485 Ndurumo measuring 1.747 Hectares issued on 29th March 2004. He purportedly purchased the land from the deceased while he was alive and later paid off PW1. He claimed he used a surveyor known as Irungu. 30.According to PW4, the Land Registrar Laikipia, the 1st owner of the land in issue was the Government of Kenya. The land was registered on 19th February, 1999, in the name of Government and on the same day it was transferred to Anne Kabura and Catherine Mutungi (Appellant) on 13th July, 2000. The land was transferred to PW1 who was issued with a title deed. From the testimony of PW1 she had no knowledge of such land hence no knowledge of a title in her name having existed. But on 29th March, 2024, the land was transferred to PW2 who was issued with a title deed. 31.On cross – examination he stated that numbers are ordinarily issued by the District Survey Office. That the land was never registered in the name of Patrick Gikore. It was never his property hence it could never have been transferred. 32.PW5 stated that the original number was 7, the original area was 5.864 Hectares. Then a new number was issued, 6485, that is an issue on 16th February, 1999, before the deceased passed on and before PW1 had power to sell the parcel. (See P-Exhibit 3 – confirmation of the grant of Letters of Administration Intestate dated 3rd June, 2014). This was before PW1 was paid Kshs.400,000/- by PW2. 33.PW5 further stated that when a parcel exists in excess it is the surveyor who advises the mapping to include it on the map. That there was an existing space between No. 7 and 6279 which was picked and mapped. These were from land buying companies. The map was amended and issued No. 6485, the area was 1.767 Hectares. 34.On cross – examination, he stated that the District Surveyor is in charge of mutations. That the amendment on the map is done by the department and they are the custodians. They issue numbers. A private surveyor can measure quantity and standard, does the subdivision, process the mutation forms and then submits to the district survey office who check the standards and requirements and check if they have consent, drawings on the land according to the area then the office issues a new number for their register. That mutation is in triplicate. One copy goes to the Registrar having been inserted numbers and he types the card then later issues the title and its custodian is the Land Registrar. That the map cannot be amended unless the Land Registrar signs page 4 of the map. Notably, the document before court had cancellations. He claimed that it was not signed. 35.Referring to parcel Plot No. 6485 he said it was between No. 7 and 9 two (2) different parcels but not adjacent. 36.The explanation given by the Appellant was that she was a member of Laikipia West Farmers in 1997 and was issued with documents which were recalled by the District Officer. After surgery she went looking for the District Officer in vain. Later she was apprehended. She did not have any documents including for the alleged surgery. 37.However, pursuant to the presumption of innocence the Accused is not required to prove her/his innocence. In Republic v Lifchus [19970 3 SCR 320 the Supreme Court of Canada stated that;“The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty...the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.” 38.The Appellant denied vehemently having transferred the land to either PW1 or PW2. There were apparent contradictions in the evidence by the prosecution which prompted the court on its own motion to recall PW4 and PW5. PW4 stated that the records showed no existence of Parcel No. 6485 as No. 9 was still intact. The surveyor was blamed for what transpired and even the green card did not show where it came from. 39.PW2 stated that the surveyor who did the work was Irungu and Parcel No. 6485 was registered in his name, a title that was issued to him by District Officer Chepkwony who called him to go for the title deed. 40.According to PW3, the Investigating Officer, Irungu was a husband of the Appellant who produced title deed in her name and the name of another alleged to be a co-wife. And, on being followed they had the same fraudulently transferred to PW2. The fraud was blamed on the surveyor, but, Irungu was neither an accused nor a witness in the matter. 41.This is a matter where the ultimate accountability for the decision to issue title deeds lay with the office of the Land Registrar and District Surveyor hence officers serving in the respective offices must have been involved in fraudulent acts and to confirm the actual culprits there was need for forensic examination of documents involved which clearly bore the handwritings and signatures of the culprits. There was need to examine the green card to establish who made the entries and whether the documents were genuine. 42.It is alleged by PW2 that District Officer Chepkwony called and issued him with the title deed. the alleged District Officer Chepkwony was not availed as a witness and/or an accused person to clarify what transpired if the allegation was true 43.PW3 contradicted the evidence of PW2. Hence the question whether PW2 should have been an accused as opposed to a witness. The apparent contradictions undermined the truth of the allegations. Clearly, PW 2 was an unreliable witness whose evidence was totally discredited. 44.Finally, the land was never registered in the name of Patrick Gikore hence the complaint would not withstand the test because the allegations lacked credibility. In the result the appeal has merit. Accordingly, the same is allowed. Therefore, the conviction is quashed and sentence set aside. The Appellant shall be released forthwith unless lawfully held.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF JULY, 2026.……………………L.N. MUTENDEJUDGE